Incarceration Revisited (April, 2019, Issue 1)

April 19, 2019, by Junayed Chowdhury

The Probation of Offenders Ordinance 1960 (“the Ordinance”) was promulgated into the criminal justice system of Bangladesh as a correctional programme for offenders where the sentence for the offence is not more than 2 years. Probation provides alternative noncustodial sentences such as fine, conditional discharge, compensation to the victims, impose a bond with or without sureties etc. The probation procedure is a system with a broader perspective to reintegrate and rehabilitate the offenders back into the society.


The Supreme Court of Bangladesh issued a circular[1] (“the Circular of 2019”) which highlighted a lacuna in the criminal justice system, where the courts in Bangladesh fail to consider alternative methods of sentencing when offenders may be eligible for probation under the Ordinance.


In Bangladesh, the judicial system frequently opts for custodial measures rather than non-custodial alternatives. As a result, there has been significant increase in population growth rate in aggregated prisons in Bangladesh.[2]


In addition, a study of World Prison Brief shows that the occupancy level of prisons in Bangladesh is at an alarming rate of 241.5%,[3] which is based only on the official capacity. Overcrowding in prison will, as a result, depreciate the living standard in the prison and subsequently impede the reformative development of offenders which is one of the main purposes of the custodial measure.


Overcrowding in the prison also means there will be limited resources for surplus number of prisoners. According to the Department of Prisons’ statistics, there are 3 under trial prisoners for every convict[4] and 385 mentally challenged prisoners[5] in Bangladesh who require treatment and might be eligible for probation under the Ordinance.


Addressing the issue of overpopulation in prisons in the Circular of 2019, the Hon’ble Chief Justice directed all courts with power under the Ordinance, to implement its provisions when appropriate.


In addition to the direction provided in the Circular of 2019, Bangladesh, as an UN Member State, is under an obligation to develop non-custodial measures within her legal system, which will reduce the use of imprisonment and provide an opportunity to the offender to rehabilitate into the society.[6]


The Ordinance is specifically concerned with adult offenders. Probation is not applicable on male offenders who are convicted for death penalty or life imprisonment and any other offences stipulated in section 5(1)(a) of the Ordinance.


While determining whether to grant probation, the Court will consider factors stated in section 4(1)(a) and (b) of the Ordinance, where probation is subject to an offender’s “age, character, antecedents or physical or mental condition of the offender” and “the nature of the offence or any extenuating circumstances”.


The Ordinance provides the competent court with authority to “order the offender to pay compensation or damages for loss or injury caused to any person by the offence”. This condition may grant the offender with conditional discharge or probation order which in return will be helpful for victims who may prefer compensation than vengeance.

By triggering the mechanism of the Probation of Offenders Ordinance 1960, the Circular of 2019 exhibits the penal system in Bangladesh as reformatory in nature, diverting away from the traditional means of retribution.


Written by Junayed Chowdhury, Managing Partner


† Disclaimer: The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg.

[1] Circular No. J-01/2019 dated 12.02.2019, High Court Division, Supreme Court

[2] Prison Population Statistics 2017, Department of Prisons, Bangladesh, Volume 1, February 2017

[3] data (as of 13.08.2018)

[4] Prison Population Statistics 2017, Department of Prisons, Bangladesh, Volume 1, February 2017

[5] supra

[6] United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules) : resolution by UN General Assembly (44th sess.:1989-1990), 2 April 1991